2018 QCCA 132, 2018 QCCA 132

Daoust c. R. 2018 QCCA 132 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006046-153 (500-01-082172-120) MINUTES OF THE HEARING DATE: January 30, 2018 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE , J.A. PATRICK HEALY , J.A. CLAUDINE ROY , J.A. APPELLANT COUNSEL MICHEL DAOUST Mtre PHILIPPE CLOUTIER (Raby Dubé Le Borgne avocats) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARIE-EVE MAYER (Directeur des poursuites criminelles et pénales) On appeal from a judgment rendered on November 10, 2015 by the Honourable Justice Manon Ouimet of the Quebec Court, District of Montréal

NATURE OF THE APPEAL : Conviction- Mixed question of fact and law- Lineup Clerk: Alya Elisio Courtroom: Pierre-Basile-Mignault HEARING 10:10 Commencement of the hearing. The bench wishes to hear the respondent first. Preliminary remarks of Justice Morissette, J.A. 10:11 Submissions by Mtre Mayer. 10:19 Submissions by Mtre Cloutier. 10:36 Recess. 10:44 Resumption of the hearing. BY THE COURT : See judgment- page 3. Conclusion of the hearing.

Alya Elisio Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a judgment of the Court of Quebec in which the appellant was found guilty of six offences: robbery, [1] using an imitation firearm in the commission of an offence, [2] two counts of disguise with intent to commit an offence [3] and two counts of possession of a prohibited substance for the purpose of trafficking. [4] [ 2 ] The appellant raises three grounds. The first he characterises as a question of law and for the other two he obtained leave to appeal on mixed questions of fact and law. These are the three questions: 1.

La juge du procès a-t-elle erré en droit en retenant, une partie, du témoignage de la seule témoin oculaire malgré le fait que la cour se questionne sur la fiabilité de son témoignage? 2. La juge du procès a-t-elle erré en faits et en droit en ne prenant pas en considération les recommandations faites par le rapport Sophonow quant à la conduite à être adoptée par les policiers lors d'une parade d'identification? 3. La juge du procès a-t-elle erré en faits et en droit en n'agissant pas avec la prudence nécessaire dans le cadre d'un dossier où la preuve repose uniquement sur une question d'identification?

These questions are three versions of a single question: Did the trial judge render an unreasonable verdict in light of the identification evidence? [ 3 ] As with issues of credibility, the reliability and probative value of evidence are typically questions of fact and occasionally mixed questions. The first question here concerns the evaluation of the testimony of the sole eyewitness at the events and most notably its reliability. Thus the standard of review for these three questions is that of overriding and palpable error and not correctness.

This is an exacting standard and accordingly this Court owes a broad margin of deference to the trial judge in her assessment of the whole of the evidence before the court. This standard was described in J.G. v. Nadeau :

une erreur manifeste et dominante tient, non pas de l’aiguille dans une botte de foin, mais de la poutre dans l’œil. Et il est impossible de confondre ces deux dernières notions. [5] This passage has been quoted many times across Canada and with approval by the Supreme Court of Canada. Context [ 4 ] On 20 November 2012 two men entered a pharmacy in Montreal and committed several offences. One of the two men was never identified. The other offender was allegedly the appellant. An employee testified as to the identity of the appellant who remains detained since his arrest on 28 November 2012.

This dock identification was properly given no probative value by the trial judge. There were other elements in the evidence concerning identification and it is convenient to narrate them in chronological order. [ 5 ] Eleven days before the offences on 20 November 2012 the appellant was the subject of police surveillance. Several photographs of him were taken that show him wearing a short pony-tail and dark shoes with white laces and partially white soles.

One of the surveillance officers, I.L., testified at trial that the green tuque worn by one of the robbers was the same as the one worn by the appellant at the time of the surveillance on 9 November 2012. No photograph of the appellant wearing the tuque was put into evidence. [ 6 ] Two employees witnessed the robbery: a pharmacist and L.M., a technician. Only L.M. could identify one of the robbers.

Immediately after the commission of the offences she told police officers that she was not certain that she would be able positively to identify the robber whom she had never previously seen, saw for a few seconds and gave a vague description. There was no other direct evidence of identification and the trial judge said that “by far” this evidence could not prove identification. For the rest the evidence of identification was circumstantial. [ 7 ] There was a video of the commission of the offences, approximately ninety seconds in length, but it does not allow the viewer to see the robber’s face.

The trial judge examined this video and concluded that it showed the robber in a green khaki tuque with a white logo on the left side and the bill turned up behind the ears. Indeed, the video allows for the identification of a green tuque and some shoes, but no reliable evidence of a person. [ 8 ] The eyewitness L.M. participated in a photographic identification parade one week after the offences. She immediately, and with no hesitation, identified the appellant from the eight photographs displayed on one page.

She testified that the image of his face was “stuck in her head.” The trial judge commented that the procedure in the identification parade was less rigorous than recommended in the Sophonow Report but nonetheless adequate. The trial judge accepted the evidence of L.M. and a police officer that no effort was made to suggest or influence L.M. in making a positive identification of any suspect. [ 9 ] At trial the eyewitness L.M. made a dock identification of the appellant but the trial judge gave this evidence no probative value given that he was in the prisoner’s box.

The witness also gave a description of the suspect at trial that was vague, inconsistent and in several particulars contradictory, including details concerning the suspect’s height, eye colour, hair, headgear and the description of the weapon or imitation. Moreover, L.M. acknowledged that she did not previously know the appellant, that the event was brief and that she was at the time in a state of panic. [ 10 ] The trial judge also gave no weight to the evidence of a police officer who participated in the surveillance of the appellant on 9 November 2012.

She concluded that it was opinion evidence that was unsupported by any previous knowledge or familiarity with the appellant. [ 11 ] The trial judge concluded that the evidence of L.M. alone could not sustain proof beyond reasonable doubt of identification. But she also specifically concluded that the cumulative effect of the other circumstances to which she gave probative value was sufficient to prove this essential element to the required standard of proof. Second ground [ 12 ] The second ground of appeal can be dismissed summarily.

The appellant submits that the trial judge should have rejected the identification evidence, because the photographic line-up did not comply with the standards recommended in the Sophonow Report. [6] [ 13 ] There is no principle of positive law in Canada that recommendations in the report of a commission of inquiry have the force of law. A judge who does not follow them commits no error by that fact alone that warrants intervention by an appellate court.

The Sophonow Report is one among several reports that offer guidelines on identification procedures. [7] The jurisprudence is clear that these recommendations are not legally binding in Quebec or anywhere else. They seek to improve investigative practices involving eyewitness identification by identifying best practices. It does not follow that identification evidence obtained in a manner that differs from these recommendations is inadmissible. [8] The probative value of identification evidence is a question of weight.

Justice Vauclair describes the utility of advisory recommendations in Joseph : [41] L’appelant avance que la parade d’identification ne rencontre pas en tout point les recommandations du Rapport Sophonow . C’est vrai.

Ce rapport, fort pertinent et d’une grande importance, formule des observations fondamentales sur les dangers de la preuve d’identification et suggère des moyens pour les contrer. […] Toutefois, encore récemment dans l’arrêt Pelletier , la Cour d’appel de l’Ontario rappelait que les recommandations du rapport n’établissaient ni une procédure obligatoire ni un préalable à l’admissibilité d’une preuve de parade photographique. [42] Dans l’arrêt Beaulieu , la Cour s’est largement inspirée des propositions faites par diverses commissions sur la preuve d’identification pour en mesurer le caractère équitable.

Bien que la Cour fût divisée sur le résultat, elle constate l’importance d’un processus rigoureux inspiré des meilleures pratiques sans toutefois en faire une exigence gouvernant l’admissibilité de la preuve. Dans la mesure où l’appelant invite spécifiquement la Cour à le faire, je suis d’avis qu’il n’y pas lieu de créer une telle exigence, tout en

rappelant qu’une procédure d’identification qui ne suit pas les meilleures pratiques est plus susceptible d’interpeller l’intervention des tribunaux d’appel. [9] The second ground is without merit. First and third grounds [ 14 ] The frailties of eyewitness identification are notorious. [10] Indeed, it is now a truism and a commonplace to say that the frailties of identification evidence are notorious. In this case the direct evidence of the eyewitness is unreliable and cannot prove identification. The indirect evidence is perhaps consistent with the eyewitness’s evidence but it does not confirm or corroborate it.

Taken alone, the circumstantial evidence in no way meets the standard of proof beyond reasonable doubt or even any lesser standard of persuasion. This evidence could only prove identification if the sole reasonable inference, beyond reasonable doubt, is that the robber was Mr. Daoust. This is the standard set by the Supreme Court. [11] This is not the only reasonable inference from the evidence of identification adduced in this case. It is some evidence that Mr. Daoust might have some characteristics similar to those of the robber but it is far from proof that Mr.

Daoust was the robber in the pharmacy on 20 November 2012. Taken together, the direct and circumstantial evidence support the possibility, perhaps even the probability, that Mr. Daoust was the robber; but it cannot support proof of identification beyond reasonable doubt. A finding of guilt on this basis is unreasonable. [ 15 ] FOR THESE REASONS, THE COURT: [ 16 ] ALLOWS the appeal; [ 17 ] ACQUITS the appellant on all six counts. YVES-MARIE MORISSETTE, J.A. PATRICK HEALY, J.A. CLAUDINE ROY, J.A.